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They are contrary to common law and right. Public policy denies, and courts of justice annul them, as incompatible with good government. Courts of justice will not indulge even wills, so as to create a perpetuity which the law abhors-strong language, but it is the language of Blackstone. Yet the law is, that one of the peculiar properties of a corporation is perpetual succession; for in judgment of law it is capable of indefinite duration. What right have annual legislative trustees of the permanent sovereignty, without express authority in their written commissionwhat public policy is there, by personal privilege, in granting property in perpetuity to one or more incorporated persons, which common law and equity withhold from the same persons, if not incorporated? Common law abhors and annuls perpetuities. The common practice of American legislatures pullulates them. A man may have as a corporation sole what he cannot have as an individual. It is settle d law that a charter conveys no power but what is expressly granted, or indispensable to effectuate what is so granted. Yet personal exemption from the common lot of all unincorporated persons, which is not expressly granted by any charter, is assumed as part and parcel of the grant, to the detriment of the community. Property prevails over person, to establish, by judicial and professional interpretation of common law, what, if tested by any mode of ascertaining it, would assuredly be refused by common sentiment. Charters, in the theory, are to go by their very letter; but in practice they confer privileges beyond all their original and true spirit. American legislators are trustees of parts of a reserved sovereignty. But they grant the whole sovereignty over the currency, the highways, and other property of the sovereignty, which they are not entrusted to part with, because the Federal Legislature has no power, in terms, to grant charters. Such power is denied by much of the intelligence of the country. It has always been insisted by many of the makers of the federal constitution, that without express power to incorporate, such power does not exist. Hamilton in his vindication of the constitutionality of the Bank of the United States, asserts the English position, that power to incorporate is inherent in every definition of government, as a general principle, essential to every step of its progress; that every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society. This general principle then, he says, puts an end at once to Jefferson's abstraction, that the United States have not power to erect a corporation, that is to say, to give a legal or artificial capacity to one or more persons distinct from the natural. "It is incident," says Hamilton, "to sovereign power to erect corporations. The difference is this, that where the authority of government is general, it can create corporations in all cases; where it is confined to certain branches of legislature, it can create corporations only in those cases. The Roman law is the source of the power of incorporation; according to which a voluntary association of individuals, at any time or for any purpose, was capable of producing it. In England whence our notions of it are immediately borrowed, it seems part of the Executive authority, and the exercise of it has been often delegated by that authority; whence, therefore, the ground of the supposition, that it lies beyond the reach of all those important por

tions of sovereign power, legislative as well as executive, which belong to the Government of the United States. An incorporation seems to have been regarded as some great independent substantive thing; as a political engine, and of peculiar magnitude and moment; whereas it is truly to be considered as a quality, capacity, or means to an end. Thus a mercantile company is formed with a certain capital for the purpose of carrying on a particular branch of business. Here the business to be prosecuted is the end. The association in order to form the requisite capital is the primary means. Suppose that an incorporation were added to this, it would only be to add a new quality to that association; to give it an artificial capacity by which it would be enabled to prosecute the business with more safety and advantage. A general legislative authority implies a power to erect corporations in all cases, a particular legislative power implies authority to erect corporations in relation to cases arising under that power only. To erect a corporation is to substitute a legal or artificial person; and where a number are concerned, to give them individuality. To that legal or artificial person once created, the common law of every State of itself annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence; for the true definition of a corporation seems to be this: that it is a legai person, or a person created by act of law, consisting of one or more natural persons authorised to hold property, or a franchise in succession, in a legal, as contra listinguished from a natural, capacity."

I have quoted thus copiously from Hamilton's admirable defence of legislative power to grant corporations, because I know of no abler vindication, and my object is to state the whole question in its utpost fairness and force. But this argument was in answer to Jefferson's become, lik. Hamilton's, the standard of a political school. I will not say that the errors of Hamilton's argument, but its inconsistency at any rate with those political principles which have been asserted by certain philosophers from Locke to Jefferson, consists among other things in ascribing sovereignty to legislation, which, however consistent with English doctrines, is inconsistent with American. Congress is not sovereign, even though supreme in its delegated authorty nor is a State legislature. Power superior to that of legislation, abides in written constitutions, and sovereignty or ly in the people. Corporations derived from Roman law; and in England part of the executive authority may have been corroborated by the common law annexing to them personal intangibility. But English common law has never secured corporate beyond private rights, and how came that part of the common law of England, which sanctions corporations, to be. consecrated here as law at all? That it is not the law of the United States must be agreed, and whether so in any State, depends on the particular constitution and law of that State. In all the States carved out of Louisiana, if the Roman law is their inheritance, every voluntary association might be incorporated, but no member of a corporation would be personally privileged from common liability. The flower of English royal prerogative to grant charter, even by deputy, when transplanted to America, took root, if any where, in the popular, not the legislative soil. When Jefferson denies that Congress can create a corporation with capacity to set aside the daws of mortmain, alienage, descents, distributions, escheats and monopolies established by the State, does he not authorise denial of the common law's power to do so? State legislation may effect those purposes directly, but can it grant charters

as successor to the British Crown, without explicit constitutional permission? Or can the English common law, Americanized, judicially repeal these most important of our alterations of that common law? I venture to question this boasted issue of complicated construction-all assumed, all constructive-construction reared on assumption. The crown incorporates, therefore the legislature incorporates, without express constitutional permission. The English common law annexes incidents to corporations subversive of equality, therefore American common law abrogates the cardinal statutes of our Government, and thus an incorported individual is placed beyond all our political institutions.

The first constitution of Pennsylvania is explicit in this respect, Chapter I, Section, 3 and 4 of the Declaration of rights: "The people of this State have the sole exclusive and inherent right of governing and regulating the internal policy of the same. All power being orginally inherent in, and consequently derived from the people; therefore, all officers of Government, whether legislative or executive, are their trustees and servants, and at all times accountable to them."-These pregnant declarations of the source, trust, and accountability of legislation, if not unmeaning phrases, are original and explicit reservations by a sovereign people of their rights, always to regulate the internal police of their State, by mere short lived responsible trustees, never empowered, unless in terms, to devolve on other trustees (which is incompatible with the nature of trusts) perpetual and exclusive privileges of exemption from the common lot of their common constituents. In the second chapter of the same Constitution, legislative powers are defined; and among others is, in terms, that of granting charters of incorporation. It may be affirmed, therefore, from the constitution of '76, when corporations had not become common right by common misapprehension, and State bank charters were unknown, that the prevailing opinion in Pennsylvania was that legislatures cannot grant them without being authorised expressly by constitutional permission. In the debates on repealing the charter of the Bank of North America, this is forcibly urged by Mr. Smilie and Mr. Findley; and before legislative practice on this subject had become inveterate, under the seductive influence of public improvements and individual infidelity, legislative power to incorporate was not taken for granted as it is now, but the contrary. The first article of the Declaration of Rights of the constitution of '90, declares the birthright equality of all men, and their indefeasible right of acquiring, possessing, and protecting property; which is no unmeaning phrase, as it must be, if legislation may render all men unequal in the acquisition, possession, and protection of property, by privileging a few to be exempt from the liabilities common to all the rest concerning it. The law of continental Europe, from which we derive our illegitimate corporations, does not confer on men incorporated the formidable privilege of holding corporate property free from the personal liabilities to which they are liable for their unincorporated property. The pedigree of American corporations is extremely base. Privileges inconsistent with American government proceed from acts of legislatures having no constitutional power expressly to grant them; but the legislature does not give the most formidable privileges. A name, faculty of suit, succession, a seal, authority to make laws not contradicting the law paramount, and to hold property, are capacities useful to the public ends which alone legislat ionhas a right to provide for, when individuals are incorporated

Privilege of exemption from individual liability, which is no part of the Roman original, is assumed in this country as an incident of English common law. As a corporation cannot be committed to prison or outlawed, be arrested or appear to suits in person, therefore, proceedings against it are by distress on its lands and goods. But on what principle of common law or good government are the members privileged from personal responsibility for their corporate property? Granting that to be the English common law, no part of that law was adopted in America which is inconsistent with American institutions. There were very few if any political corporations at the time of the Revolution; and what is taken for common law perhaps even there, but certainly here, is not that custom arising from universal agreement which Blackstone defines to be the common law, but rather assumption or usurpation of very recent and unnatural growth-the fungus or imposthume of professional plethora. The Roman original being entirely departed from, and even the English royal prerogative of incorporating extended, may it not be questioned whether by the American Revolution this formidable power passed to our Legislatures? If the people are the State, and the Legislature is not, it follows that no legislature has authority to grant charters, unless permitted by the people in a constitution. It is of vast importance to the permanence of our institutions that the origin of assumed power should be ascertained. Corporation power is now an overshadowing influence in this State whose very prepotency requires investigation. Such as its rights are, let us abide by them, but let us ascertain what they are.

Mr. Porter concedes as most others seem to do, the right of posterior legislation to tax banks, limit dividends, and otherwise restrain banks. Power to limit bank issues of paper, and confine them to coin, is universally asserted and acquiesced in. The Governor in his late message, insists on much more extensive intervention than is necessary, by subsequent enactment to impair the original privileges of bank charter. I never heard a denial of the legislative right to change the public circulation by diminishing the paper and increasing the coin of banks, (whatever may be said of direct repeal of their charters,) till Judge Hopkinson insisted upon it here. It has not been questioned before, I believe, either in practice or principle. He contends that power to issue the paper or coin medium continues always as granted at first; which is pushing vested right in public power to the uttermost; though perhaps the best test of the validity of the argument which denies posterior legislation any power to affect the alleged contract of bank charters. Paine, as cited by Mr. Porter, evades the question of power and fabricates an argument on contract, by suggesting that charters are not laws but actз—acts of bargain and sale by the Legislature. But who commissioned Legislatures to sell and bargain acts of favor for money, as kings sell titles? Mr. Forward in his letter, calls a charter the act of a Legislature, clothed with limited powers, he grants, but to the extent of those powers representing the people; and he would be pleased by some one's defining what is meant by sovereign power. Chief Justice Marshall says, in Peck's case, that it may well be doubted whether the nature of society and government does not prescribe some limits to the legislative power. Although less susceptible of definite restriction, legislative power requires limitation at least as much as Executive or judicial power; and it is a great desideratum of American politics to teach our legislators, many of whom, especially the professional members, are extremely loose

Too many suppose
Paine's suggestion

In their notions of legislative power, that it is limited at all they may vote as they will, provided it is not morally wrong. is but an evasion of the question of power. The notion that a law may not be a contract, because called an act and not a law, though clothed with all the forms, solemnities and effects of a law duly enacted, is a mere sophism. By whose commission do law makers become chapmen, to sell privileges for money in which they too often contrive to share themselves, or with friends, relations, or partisans? Not only is a charter a letter of attorney, to be executed to the letter, and infringed by every departure from it; but legislation is a strict commission also, and every representative, whether corporator or legislator, who forgets that he is a trustee, violates his trust. Kings of England have sold charters, and even granted to others the power to sell them, as they have sold titles. But that American legislators have no such power, Paine himself proves in the following extract from a publication by him, dated June 21, 1805, addressed to the citizens of Pennsylvania on the proposal for calling a convention to reform this Constitution:

"A constitution is the act of the people in their original character of sovereignty. A government is the creature of the constitution; it is produced and brought into existence by it. A constitution defines and limits the powers of the government it creates. It therefore follows as a natural, and therefore a logical, result, that the government exercise of any power not authorised by the constitution, is an assumed power and therefore illegal.

"There is no article in the Constitution of this State, nor of any other State, that invests the Government, in whole or in part, with the power of granting charters or monopolies of any kind; the spirit of the times was against all such speculations; and therefore the assuming to grant them is unconstitutional, and, when obtained by bribery and corruption, is criminal. It is also contrary to the intention and principle of annual elections. Legislatures are elected annually, not only for the purpose of giving the people, in their elective characters, the opportunity of showing their approbation of those who have acted right, by re-electing them, and rejecting those who have acted wrong; but also for the purpose of correcting the wrong (where any wrong has been done) of a former Legislature. But the very intention, essence and principle of annual election would be destroyed, if any one Legislature, during the year of its authority, had the power to place any of its acts beyond the reach of succeeding Legislatures; yet this is always attempted to be done in those acts of Legislatures called Charters. Of what use is it to dismiss legislators for having done wrong, if the wrong is to continue on the authority of those who did it? Thus much for things that are wrong. I now come to speak of things that are right, and may be necessary.

"Experience shows that matters will occasionally arise, especially in a new country, that will require the exercise of a power differently constituted from that of ordinary legislation; and therefore there ought to be an article in a Constitution defining how that power shall be constituted and exercised. Perhaps the simplest method which I am going to mention is the best, because it is still keeping strictly within the limits of annual elections, makes no new appointments necessary, and creates no additional expense. For example:

"That all matters of a different quality to matters of ordinary legislation-such, for

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